I must respectfully dissent from the majority's decision in connection with appellants' second assignment of error because I believe appellants' proposed interrogatory was proper and should have been submitted to the jury.
Initially, I disagree with the majority's opinion that the proposed interrogatory is too vague and confusing. As the majority points out, the jury in this case was presented with two distinct issues of deviation from the standard of care: (1) whether it was a deviation for Blazic to pierce the inferior border of Weidner's mandible, and (2) whether it was a deviation for Blazic to fill the holes left by the implants with HA. Appellants' proposed interrogatory read: "Do you find from a preponderance of the evidence that Dr. Blazic, in placing implants beneath the inferior border of the Plaintiff's mandible, deviated from an accepted standard of *Page 337 care and treatment?" As this interrogatory clearly and directly addressed the first issue to be determined by the jury, it was not vague or confusing.
Further, I disagree with the majority's finding that the proposed interrogatory did not address determinative issues in the case. The majority reasons that, because there were two distinct issues of deviation presented in this case and because appellants' proposed interrogatory addressed only one issue, it would not have definitely settled the controversy between the parties; therefore, the majority concludes that it did not address determinative issues. The majority apparently reads Civ.R. 49(B) to require interrogatories to test all determinative issues. Such a reading is erroneous.
Civ.R. 49(B) provides that "interrogatories may be directed to one or more determinative issues * * *." (Emphasis added.) Appellants' proposed interrogatory was indeed directed to one such issue, namely, whether Blazic had deviated from an accepted standard of care in piercing the inferior border of Weidner's mandible. As such, the interrogatory was proper and the trial court had a duty under Civ.R. 49(B) to submit it. SeeFreeman, supra, 69 Ohio St.3d at 615, 635 N.E.2d at 314 (when plaintiff's allegations include more than one act of negligence, it is proper to ask the jury to state of what the negligence consisted). Thus, the trial court's failure to submit the instruction constituted an abuse of discretion.